Lt. Watada revives the Nuremberg principles

Imagine a court deciding that Army Lt. Ehren Watada correctly refused to obey orders to deploy for Iraq in 2006! This legal Immaculate Conception would lead to an immediate withdrawal of U.S. forces from Iraq – if Bush would obey the law.

In May, 2006, Watada told journalist Sarah Olson he would not follow orders to go to Iraq. He also spoke publicly, declaring the war illegal under the Nuremberg precedent. On June 22, 2006, Watada refused to board a Middle East bound plane. The army court-martialed him for “missing movement,” refusing to deploy to Iraq, and for conduct unbecoming an officer.

The issue is the relevance of the August 1945 Nuremberg laws: war crimes, including illegal war and the duty to oppose it. If Bush possessed no legitimate casus belli to attack Iraq, Watada should win acquittal. The Nuremberg lessons were meant to teach officers to consider the legality of giving orders to troops under their command to commit actions in an illegal war.

“For the first time,” explained Supreme Court Justice Robert Jackson in Nuremberg in August 1945, “powerful nations have agreed not only upon the principles of liability for war crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking the international peace.”

No more would nations agree on an abstract declaration “that the launching of aggressive war is illegal.” The war-crimes trials would “make clear to the world that those who lead their nations into aggressive war face individual accountability for such acts.” By this he meant “that aggressive war-making is the way to the prisoner’s dock rather than the way to honors.”

Germans must understand that “the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.”

Jackson and his fellow jurists understood Nuremberg as an “instrument in fixing individual responsibility of war-mongering, among whatever peoples, as an international crime.”

It now appears that Bush broke the very laws U.S. leaders struggled to engrave as permanent guides for outlawing aggressive war. Bush’s non-existent WMD and links to Al Qaeda justifications for attacking Iraq in 2003 bear little more weight than Hitler’s pretext for invading Poland in 1939 – a staged Polish attack on German forces. The Nuremberg laws prohibited such pretexts for wars after more than 100 million people had perished in two world wars in one half century.

After World War II, to establish means other than war to resolve international conflict, the great powers constructed the United Nations. When Bush invaded Iraq, he contravened the UN Charter. Indeed, a special February 2003 Security Council meeting explicitly refused to back his invasion plan.

In pre trial sessions, the presiding military judge, Lt. Col. John Head tried to convince Watada, unsuccessfully, that the Nuremberg defense made no sense. Head saw no way for soldiers to resist orders – even ones to commit genocide. The judge’s law clerk apparently failed to show him Hamdan v. Rumsfeld, a June 29, 2006 Supreme Court decision declaring that U.S. and international law barred U.S. officials from committing war crimes.

Ignoring this case, Head wrote: “A hearing on the ‘Nuremberg defense’ would consist of witnesses who would testify that the war in Iraq was a crime against peace, a war of aggression, and a violation of the United Nations Charter, other international law, and U.S. law. The accused would testify that his refusal to go to Iraq was based upon the belief that he would be committing war crimes because the United States was involved in a war of aggression and a crime against peace.” Head would not allow such witnesses.

When Watada insisted on Nuremberg as his defense, Head declared a mistrial: He had previously insisted that “The accused’s motive not to deploy and his belief about the lawfulness of the Iraq war are not elements of the offense. Motive is, therefore, irrelevant on the merits…. Even had the defense been granted the full hearing they requested, the decision would be no different.”

Head said Watada had inadvertently confessed guilt by admitting to the Army’s facts: refusing to deploy to Iraq and making anti-war speeches. Watada insisted on his duty to refuse to obey illegal orders, which derived from waging an aggressive war. Head either did not understand or wanted out of the trial.

Watada’s lawyer, Eric Seitz, argued that “the legality of the Iraq War is not merely a political question. Lt. Watada’s specific intent was to avoid unlawful actions in Iraq. For the sake of due process, we need the opportunity to raise this issue.”

Head dismissed both the due process argument and the idea members of the military enjoy inherent protections of political speech. This would mean, according to an American Civil Liberties Union brief filed for Watada: “If the [political speech] charges leveled in this case are allowed to proceed, it would mean that service members are completely barred from voicing their honest opinions on political subjects of significant public concern. Silencing speech like Lieutenant Watada’s violates the Constitution while it also harms the military and the public at large.”

Watada went further. “To stop an illegal and unjust war, the soldiers can choose to stop fighting it,” he said in his August 2006 University of Washington speech. “If soldiers realized this war is contrary to what the Constitution extols -- if they stood up and threw their weapons down -- no President could ever initiate a war of choice again.”

He added: “Should citizens choose to remain silent through self-imposed ignorance or choice, it makes them as culpable as the soldiers in these crimes.” His words have the familiar ring of what people said about Germans after World War II.

“We as Americans have to step up and say either we agree with what’s going on or we disagree with what’s going on,” Watada told his Seattle audience. “If you disagree...then you are going to have to ask yourself what are you willing to sacrifice of yourself in order to correct the injustice and wrongs of this government in regard to the Iraq War.”

In late February, the government re-filed the same charges against Watada. Military courts have not scheduled a new trial date. Watada will continue to insist on his obligation to refuse service in an illegal war. Anti-war groups hail him. Bush loyalists call him a traitor. If convicted on all counts, Watada could receive up to six years in prison and what amounts to a dishonorable discharge.

The Army’s official understanding of war crimes has narrowed considerably since Nuremberg. It views war crimes as specific acts. Soldiers should not obey orders to execute prisoners or torture them; but military personnel should not question the legality of the war itself. Ironically, in the Iraq War, military courts would overflow if the Army were to enforce even its very narrow view.

Before he made up his mind to disobey, Watada “went through depression.” “When I told myself that … I have a choice to do what is morally right, what is in my conscience, and what I can live with for the rest of my life -- even though that comes with consequences, I do have that choice. When I realized that, and when I chose what was right for me, I became free again. And I think everybody has to remember that and to realize that is what is important in life.” (http://www.anti-state.com/blog/?p=66)

Watada’s actual convictions reflect broad public opinion on the war itself. “Sixty-six percent now say the war in Iraq was not worth fighting,” reported a February 28 ABC News/Washington Post poll. Congressional committees have begun to probe Bush Administration statements about weapons of mass destruction, kidnapping prisoners and use of torture. Democrats saw the November 2006 elections as a mandate to end the Iraq war. Yet Bush sent more troops there.

Watada’s resistance offers anti-war activists and Congress a new path. If Bush’s decision to invade Iraq violated the law, soldiers should lay down arms and come home. Democrats would stop wringing their hands. Most Americans would celebrate.

Saul Landau’s new book, “A BUSH AND BOTOX WORLD,” is available. His new film, “WE DON’T PLAY GOLF HERE- and other stories of globalization” can be purchased through roundworldmedia@gmail.com